Politics, populism and the law: who really speaks for the Kenyan people?

There is no doubt that Kenya’s Supreme Court made a historic decision in annulling the country’s August 8th presidential election. But it’s been met with different reactions.

There are those who see the decision as a success for democracy and the epitome of constitutionalism, in particular the separation of powers. Others view it as a subversion of democracy and a mutiny on the rights of the electorate.

I would argue that the decision exemplifies various facets of populist politics, including judicial populism. From my research, it is clear that populism and demagoguery politics are still very much alive in Africa. This is despite the fact that populism can’t be reconciled with liberal democracy, constitutionalism and human rights.

Dutch political scientist Cas Mudde defines populism as “an ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite’, and which argues that politics should be an expression of the volonté générale (general will) of the people”.

The central question in populist politics is, therefore, who represents the people? Members of the ruling elite have variously appropriated the will of the people to support their agenda.

For instance, after the decision of Kenya’s Supreme Court on September 1, the petitioner, opposition leader Raila Odinga claimed the ruling as a triumph for the people of Kenya. On the other hand, the incumbent President Uhuru Kenyatta lamented that the decision of six judges was subverting the will of Kenyans.

Given these conflicting views from the two contesting presidential candidates, who then represents and speaks for the Kenyan people? Is it those leaders who are in government, or those who are in opposition? Both have claimed to represent ‘the people’, which is to imply that any person who does not agree can be dismissed.

Populism, identity and democracy

One could argue that only those who identify with either of the two leaders can be defined as ‘the people’. Therefore, populism and identity politics find common ground.

It is no secret that Kenya has been bedevilled by the politics of identity and the tendency for voters to coalesce around tribal kingpins. When identity populists claim to represent the people, they are actively disregarding those who do not support their leadership. It’s therefore no surprise that despite an annulled election, both Kenyatta and Odinga still claim to represent all Kenyans.

Because populism is an exclusionary form of identity politics it cannot be reconciled with liberal democracy. Democracy thrives on pluralism and the recognition that while voters are irreducibly diverse they need to live together as free and equal citizens. It hinges on representative systems that guarantee the rights of both the majority and the minority.

Democracy is supported by both majoritarian and non-majoritarian institutions. Consider for example that elected members of parliament are elected by the majority, whereas judges are non-elected members of independent judicial institutions.

Yet the populist’s ideology is to see only those who are elected as the sole legitimate authority to decide on important things in any democracy. It is common, therefore, for populist leaders to attack non-majoritarian institutions on the grounds that they lack democratic legitimacy.

Take for example President Recep Erdoğan of Turkey who challenged his opponents by saying, “we are the people, who are you?”. Similarly, Kenyatta challenged the Kenyan judges who decided against him asking “Who even elected you?”. This was clearly a challenge to their democratic legitimacy.

Kenyatta’s visceral and dismissive reaction to the Supreme Court ruling has left his supporters with a deep distrust for the judiciary. It has also dehumanised those who do not support his hegemonic ambition. This is a recipe for post-election tension because a sizeable segment of the population – those who do not support his leadership – now feel excluded.

Should he win the forthcoming election, it is likely that the Supreme Court judges who decided the case will face political pressure from his administration. Thus, while there is no doubt that courts have a role to play as far as restraining populist leaders is concerned, they can also become victims of the machinations of populist regimes.

Judicial populism

The purpose of this piece is not to determine whether Kenya’s Supreme Court was right or wrong. It is to comment on the parallel narrative, which in my view is populism and its impact on democracy, constitutionalism and human rights.

In that sense, it is also important to note that while political leaders can adopt a populist approach to leadership, it’s not unimaginable that the courts could actively pursue a populist path by seeking to speak for the people. This is known as judicial populism.

Some judges seek to please the public because they have political interests. Others may want to be praised as heroes. Indeed, many have already hailed Kenya’s chief justice as a true African hero. This is not to presume that the Kenyan judges were populist in their approach but rather to consider all the possibilities.

Pathology of democracy

Populism has also been described as is “a democratic disorder, a pathology of democracy, and a paranoid style of politics”. To be called a populist is to be insulted and excluded from ‘respectable’ liberal democratic practice.

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